The Supreme Court has ruled, in R (on the application of AR) v. Chief Constable of Greater Manchester Police and another, that revealing an acquitted crime in an enhanced criminal record certificate (ECRC), carried out at the request of a new potential employer, does not infringe an applicant's right to private and family life (Article 8 of the European Convention on Human Rights).
An ECRC is a necessity for certain job applications, including jobs which involve working with children and vulnerable adults, social workers, teachers, carers and taxi drivers. These checks go beyond an ordinary criminal record certificate, which is limited to the facts of convictions and police cautions.
The man known as AR (who cannot be named for legal reasons) was a qualified teacher and also worked as a taxi driver. AR, who is stated to be of previous good character, had been charged with allegedly raping a 17 year old woman. After the acquittal AR applied for a lecturing position. As part of his application it was necessary for him to apply for an ECRC.
The ECRC, based on information supplied by the Greater Manchester Police Force, revealed information about the acquittal. The information was provided because it was deemed relevant as AR, if successful in his application, would be in contact with young women of a similar age to the alleged victim.
AR subsequently applied for a licence to work as a taxi driver. As part of the application, AR had to apply for another ECRC. Again the Greater Manchester Police Force revealed details of the acquittal.
AR brought judicial review proceedings against the Greater Manchester Police Force for breach of his human rights. The application was dismissed in the High Court, at the Court of Appeal and finally at the Supreme Court. In his judgment, Lord Carnwath highlighted that "there may be no logical reason to exclude information about serious allegations of criminal conduct ... even acquittal following a full trial can be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it would therefore leave open the possibility that the allegation was true, and the risks associated with that." However, he added that "[e]ven if the ECRC is expressed in entirely neutral terms, there must be a danger that the employer will infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt."
Lord Carnwath did, however, approach the matter with caution and expressed concerns over the lack of guidance given to potential employers. He confirmed that whilst reports have been provided on how employers should deal with convicted applicants, there is no guidance for employers on how to deal with those who have been acquitted. He called for further consideration of the guidance beyond the scope of this case.
Employers should therefore approach information relating to acquittals cautiously and seek guidance on how to handle such situations in practice as they are inevitably going to be fact-sensitive.
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
